Chances looked grim on Monday for a UN negotiating team to walk away from Cambodia with the binding, international agreement they hoped to secure on a Khmer Rouge trial, even as it appears that the UN and the government have indeed inched closer to consensus on how to conduct the proceedings.
UN Undersecretary General for Legal Affairs Hans Corell on Monday said an international agreement—separate from the government’s own draft law to establish the trial—is “normal” for cooperation between the world body and an individual country. “There must be some understanding between the United Nations and the member states,” he said after meeting with Minister of Foreign Affairs Hor Namhong.
Although this formal agreement is considered an important step to assure the UN that concessions made by both sides up to now will be honored, the government gave every indication on Monday that forging such an accord will be difficult, now that the government’s plan rests with the National Assembly.
Passed by the executive branch in January, the draft law to establish the trial is slated for debate in the National Assembly as early as April 19.
National Assembly President Prince Norodom Ranariddh on Monday said the executive branch—the Council of Ministers
—could have the law back if it wants it. That could clear the way for a formal pact with the UN.
But he said he has every
reason to believe the government will request no such thing.
Hor Namhong echoed the prince’s somber warning.
“We cannot take any initiative for an agreement with the UN yet,” Hor Namhong said.
Likely fearing that putting too much pressure on the National Assembly would thwart Cambodia’s already struggling democratic institutions, Corell agreed, saying Hor Namhong had a “valid concern.”
Some diplomats argue that giving the law back to the executive branch just for the sake of signing a formal deal with the UN would be too time-consuming. But political analyst Kao Kim Hourn said the practice in fact is very common. “This latest tactic is just a way for the government to beat around the bush and delay the process even further,” he said.
Kao Kim Hourn said that for Prime Minister Hun Sen to keep hard-liners in his party satisfied, the premier would rather see UN-inspired changes occur in the Assembly than by the executive branch.
Instead, it appears the most the government could do this week is shake hands with the UN. In other words, they will agree to agree in the future. “What they can do now is sign a ‘memorandum of understanding’ that could be turned into a formal agreement following passage of the draft law,” one diplomat said.
Still up for debate in what are expected to be a long and final round of talks today are the so-called “four points” sent by Corell to the government early this year. They include who will name suspects in the trial, which side will hold a majority on the court and how many judges will be required to make a ruling, whether amnesties barring certain people from prosecution will be allowed and whether the government will arrest suspects once they are named.
According to one government source who has participated in the negotiations, all but one of those four concerns have been hammered out, and all that remains is who will prosecute.
While the UN has called for an independent, UN-appointed prosecutor, the government seeks a system with one foreign and one Cambodian prosecutor—for fear an international prosecutor would broaden the scope of the trial beyond what is thought to be only a handful of top Khmer Rouge leaders responsible for atrocities during 1975-79.
On this, the government source said, the government is unlikely to budge, because a foreign prosecutor would undermine the very nature of what is known as a “mixed” trial. “This is a national trial with foreign assistance. There has to be national involvement on every level.”
Yet he said that on the question of who holds a majority, the UN already has given in a bit and agreed to allowing for a majority of Cambodian judges where “at least one” foreign judge must vote with them to make a ruling.
Prince Ranariddh was not so optimistic. “The government and the UN stand very firm on their respective positions,” he said.
Most agree that the wild card in the whole process, however, is Hun Sen himself, who has been conspicuously absent from talks with the UN so far. Before the UN delegation is slated to make its final comments on Wednesday, Hun Sen will meet the team, where one diplomat said “anything can happen.”
“It will be very difficult for Hun Sen to make a clear decision, because there are so many conflicting interests, within Cambodia and without,” Kao Kim Hourn said.
In recent months, Japan, the US and France have lobbied both the government and the UN to reach a compromise—and much of that pressure, if indirectly, is tied to aid and support.
Countries not so favorable to the UN cause also are thought to have made their positions clear during recent months.
Sources say Chinese officials based in Cambodia have reiterated their non-intervention policy in meetings with government officials, even though authorities at the Chinese Embassy on Monday denied these reports.
“China is very concerned about the next step in this trial,” one analyst said. He was quick to recall how China thwarted an international UN tribunal of the Khmer Rouge like those of Rwandans and Yugoslavians by threatening to veto such a plan in the UN Security Council last year.
Kao Kim Hourn said that although Hun Sen will have a tough time pleasing all sides, “at the end of the day, he must err on the side of morality and do what’s right—hold a fair and just trial.”
(Additional reporting by Kay Kimsong and Lor Chandara)